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A street-wise judgement

On Tuesday, the game of musical chairs known as floor crossing began at last. Not a pretty sight; but nothing constitutionally offensive with it either, said the Constitutional Court a week ago. When the music stops, in 10 days’ time, what will be longer-term legacy of this judgement? And what does it tell us about the court’s own strategy for protecting and developing constitutional democracy in this country?

Constitutional courts face a delicate balancing act. On the one hand they must defend and protect the Constitution; on the other, they must a find a way to do so that respects the authority of the elected government. There is a spectrum: at one end are decisions of assertiveness (so called ”judicial activism”), where the court intervenes to overturn a law or policy for constitutional infringement; at the other, a court that is deferential to the legislative and executive arms of the government.

Where it puts itself on the spectrum is a matter of choice and of political judgement, as much as law. In the Treatment Action Campaign (TAC) case earlier this year, where the court had to rule on the constitutionality of the government’s policy of denying HIV-positive mothers access to the anti-retroviral drug nevirapene, the court moved far along the spectrum, politely but very firmly asserting the socio-economic right to adequate health care and adopting a broad interpretation in doing so.

Away from the bench, members of the court have indicated that from a constitutional law perspective this was a straightforward task given the facts of the case, but that it was politically awkward, given the politics of HIV/Aids.

Perhaps, in the floor-crossing case, it was the other way round: getting the politics right was easy — notwithstanding the distaste with which some of the judges viewed the defection laws from their questions of counsel during the case, there may have been little enthusiasm for overturning the government again so soon after the TAC case — whereas the legal questions were more challenging.

Not that this is implied in the judgement itself. There is an air of contempt with which the court dismisses the various constitutional arguments against floor crossing. The court pointed out that no other court around the world has found it necessary to impose a requirement that an MP resign if he or she changes party allegiance during the life of a legislature.

In its one and only hint of distaste for the decision to permit floor crossing, the court then said that such a requirement in a system based on proportional representation ”though possibly desirable, is not an essential component of multi-party democracy, and cannot be implied as a necessary adjunct to a proportional representation system”.

Where the law prohibits defection, that is a lawful prohibition, which must be enforced by the courts. ”But where it does not do so, courts cannot prohibit such conduct where the legislature has chosen not to do so”, which is about as deferential a statement of intent as it is possible to imagine.

And so, mindful of the 86% majority the new laws enjoyed in Parliament, the tone of the judgement is struck. Proportional representation is not essential for the founding value of multi-party democracy, the court finds. Fair enough, that was always going to be a difficult argument to sustain. But limiting the interpretation of the political rights contained in Section 19 of the Constitution to its narrow meaning of the right to vote in elections and to participate in political activities is more surprising.

”Between elections, voters have no control over the conduct of their representatives,” says that court. Is the court really saying ”we do not wish to interfere with the conduct of politicians, especially on matters as inconsequential as what party they are loyal or disloyal to”? It might appear so.

The court admits that voters may feel betrayed when their representatives cross the floor, but then mercilessly finds that ”their remedy comes at the time of the next election when they decide how to cast their votes”.

What is surprising is the conservatism of this approach: a 19th-century conceptualisation of the role of representatives, in which, between elections, the voter cedes all authority to the elected class.

In this approach the court has neglected those parts of the Constitution that speak of a ”participatory democracy” (as opposed to a representative one) and which, more broadly interpreted, entertain the idea of a constant conversation between the elected and the electorate.

But no, says the court, the principle of proportionality applies only to the election result itself. This is as narrow an interpretation as it is possible to construct, and reveals the strategic intent of the court in this case. What happens on the day after the election is irrelevant, it says; the proportionality of the representation can be disturbed completely on day two of a parliament but that would neither infringe the Constitution nor the rights of the voter.

In effect, the court is saying that it has no difficulty with the notion that the newly incumbent victors of an election can determine the rules of the game to suit their political needs. The voter? He or she must wait until next time and hope that the rules remain free and fair.

Last Friday the Constitutional Court revealed a side of its collective character that hitherto, largely masked by the brilliance of its legal intellect, has been underestimated: its political acuity. In a judgement of astonishing narrowness, the court essentially said: ”Floor crossing, in any form, is fine by us; it’s part and parcel of politics; politics is politics, and however venal it may be, is no concern of ours.”

The intriguing paradox of this approach is that it is precisely because of the court’s political alertness that it has responded in the way it has, demonstrating its grasp of real politique. Thus, the break-up of the Democratic Alliance is described as a ”concrete situation”, to which a defection law was a rational response.

Though we are disappointed by its very narrow response to the issues raised, one cannot but admire the street-wise nature of this judgement. Put it alongside the TAC case and it shows what matters to this court: socio-economic transformation. That is laudable; and deserves complete support. It is a court that will be most assertive and activist and least deferential when it deems it crucial to protect the most vulnerable members of society.

When it comes to the inherent opportunism of politics — a politics that it clearly considers is now mature enough to cope — neither the politicians, the smaller parties nor the voter falls into that category of vulnerability. The court cannot be closing the door to the possibility that these groups may become vulnerable in the future.

Clearly, this court views its responsibility to protect the Constitution as a long-term mission and a task that includes the need for pragmatism at times. It would go too far to suggest that it is choosing to pick its battles, but certainly it is a court that is determined to craft judgements that are realistic as well as credible. When balancing its explicit duties to the Constitution with a consciousness of the environment in which it exists, we must trust that the Constitutional Court is savvy enough to get to get the balance right.

Paul Graham is executive director of the Institue for Democracy in South Africa, which was an intervening amicus curiae (friend of the court) party to the case; Richard Calland is head of its Political Information and Monitoring Service

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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